Objectives of Uncitral Model Law on Electronic Commerce (1996)

The analytical approach underlying the Model Law is that of “functional equivalence”. This approach assesses the underlying objectives and functions of traditional paper-based legal requirements and assesses the extent to which electronic transactions can fulfill these objectives and functions. To the extent that electronic transactions can fulfil the purposes and functions, the Model Law requires that they be treated as such. In fact, it puts electronic communication on an equal footing with traditional forms of paper-based communication. All States have taken the Model Law favourably into account when adopting or revising their legislation, in order to facilitate uniformity of law applicable to alternatives to paper-based methods of communication. This article provides a brief history and main provisions of the Model Law on Electronic Commerce to better understand the objectives of the MLEC and their achievement. More recently, the UNCITRAL Model Law on Electronic Transferable Records (2017) applies the same principles to enable and facilitate the use of transferable documents and instruments such as bills of lading, bills of exchange, cheques, promissory notes and warehouse receipts in electronic form. In addition to formulating the legal terms of non-discrimination, technological neutrality and functional equivalence, the MLEC establishes rules for the conclusion and validity of contracts concluded by electronic means, for the transfer of data messages, for the acknowledgement of receipt and for the determination of the time and place of sending and receiving data messages. UNCITRAL had developed a series of legal texts to enable and facilitate the use of electronic means for commercial activities, which had been adopted in more than 100 countries. The most widely used text is the UNCITRAL Model Law on Electronic Commerce (1996), which establishes rules for the equal treatment of electronic and paper-based information and for the legal recognition of electronic transactions and processes based on the fundamental principles of non-discrimination in the use of electronic means.

functional equivalence and technological neutrality. The UNCITRAL Model Law on Electronic Signatures (2001) contains additional provisions on the use of electronic signatures. Thus, model laws have become the basis for a number of pieces of legislation adopted by various Governments around the world and have standardized laws on information transmitted by electronic communication. Based on the ambiguity and heterogeneity of the law with respect to contracts concluded by means of electronic communications and the consequent threats to international trade, the United Nations Commission on International Trade Law has taken the initiative to develop a set of internationally acceptable rules on the validity and enforceability of information transmitted by electronic modes of transport. This model law is recognized worldwide and has successfully enforced the principles of non-discrimination, technological neutrality and functional equivalence with respect to data messages. This has helped to advance international trade and homogenize the different legal perspectives on the subject. The MLEC obtained the following results: Martha Helena Pilonieta v. Gabriel Humberto Pulido Casas is a case decided by the Supreme Court of Colombia. The court found that a spouse`s email was irrelevant because of the evidentiary thresholds. The principle of non-discrimination has been applied by article 5, which stipulates that the validity and legal effect of information transmitted by electronic means, i.e. in the form of data messages, cannot be denied. Information by reference has also become legally valid (Article 5bis), which has considerably extended the application of this law.

This is of paramount importance in the context of international law. After reviewing the reports entitled “Preliminary study on legal issues relating to the conclusion of contracts by electronic means” and “Electronic data interchange” and discussed in detail, it was concluded that compliance with local laws by different parties posed problems that impeded uniformity of legal perspective, functionality and practice. This gave rise to the process of drafting the Model Law. The United Nations Convention on the Use of Electronic Communications in International Treaties (New York, 2005) builds on existing UNCITRAL texts and is the first treaty to provide legal certainty for electronic contracting in international trade.